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Designing Online Dispute Resolution Journal of Dispute Resolution Volume 2020 Issue 1 Article 10 2020 Designing Online Dispute Resolution Janet K. Martinez Follow this and additional works at: https://scholarship.law.missouri.edu/jdr Part of the Dispute Resolution and Arbitration Commons Recommended Citation Janet K. Martinez, Designing Online Dispute Resolution, 2020 J. Disp. Resol. () Available at: https://scholarship.law.missouri.edu/jdr/vol2020/iss1/10 This Article is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Journal of Dispute Resolution by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Martinez: Designing Online Dispute Resolution Designing Online Dispute Resolution By Janet K. Martinez* I. INTRODUCTION This Essay stems from my role as a commenter for a panel discussion among leading thinkers on the topic of online dispute resolution (wODRx).1 Generally, ODR utilizes information and communication technology to prevent, manage, and resolve disputes. The conference served as a timely pause to assess what ODR is, how it fills diverse functions in the dispute resolution field, and when it can better meet the needs of parties and increase the accessibility and transparency of dispute resolution.2 The panelists highlighted their study of consumer, commercial, and judicial ODR. As a follow–up, this Essay compares examples offered by the panelists through the lens of dispute system design: the study of the process and product of resolving disputes of a specific category. ODR emerged from the unique needs of online e–commerce where it was geographically and legally infeasible to bring disputes to court for resolution.3 In this global online marketplace, eBay was the first to use ODR, building a private online option to address disputes arising from transactions conducted through the site.4 Since that time, ODR platforms have unfolded in both private and public domains. Now, nearly fifty courts in the United Statesvas well as courts in Canada, the Netherlands, India, Brazil, the United Kingdom, and Chinavhave established ODR process options. ODR potentially enables efficiency through processes that are faster and cheaperva difference in degree relative to traditional, face–to–face processes. My modest experience as an online mediator suggests a difference in kind, as well in the qualities of online processes. For example, users experience a difference in the use of various communication channelsvsynchronous versus asynchronous and textual versus visual, respectively, relative to the synchronous, visual communication of face–to–face dispute resolution.5 The experience of online dispute handling may feel foreign to some who prefer person–to–person contact, while the opposite may be true for those who have been online since childhood. * Senior Lecturer in Law and Director, Martin Daniel Gould Center for Conflict Resolution, Stanford Law School. My deep thanks to Colin Rule for introducing me to the world of ODR. I appreciate his comments, as well as those of Stephanie Smith, Amy Schmitz, and Jean Sternlight on this piece; my gratitude to Peter John for research and editing assistance. 1. We presented at a session of the Association of American Law Schools annual meeting in New Orleans in January 2019. My co–panelists included Peter Reilly, Alyson Carrel, Ethan Katsh, David Larson, Amy Schmitz, Colin Rule (by video), and Jean Sternlight, to whom I am very grateful for their stimulating prompts. 2. Colin Rule, Technology and the Future of Dispute Resolution,DISP. RESOL. MAG. 4, 7 (Winter 2015), http://www.colinrule.com/writing/drmag.pdf. 3. Id. at 5. 4. Louis F. Del Duca, Colin Rule, & Kathryn Rimpfel, eBay’s de Facto Low Value High Volume Resolution Process: Lessons and Best Practices for ODR Systems Designers, 6 ARB. L. REV. 204 (2014). 5. For example, texting or face–to–face would be synchronous (communicating in real time), whereas email would be asynchronous, with a time lag between messages. Communication can be textual (text or email) or visual (video, such as skype). Published by University of Missouri School of Law Scholarship Repository, 1 Journal of Dispute Resolution, Vol. 2020, Iss. 1 [], Art. 10 136 JOURNAL OF DISPUTE RESOLUTION [Vol. 2020 Artificial Intelligence (wAIx) capacityvsometimes used in ODRvdraws on big data to develop algorithms to predict outcomes and aid decision making that far exceeds what a human mediator could do in real time.6 Further, ODR can be a system of its own, such as for smart contracts on the blockchain,7 or one process component of a broader system in a court.8 Thus, the diversity of ODR in practice makes it difficult, if not misleading, to lump all permutations under one umbrella term in an assessment of ODR. One question, then, might be whether ODR is the right term to capture these diverse functions and case management more broadlyv a critique explored in Jean Sternlightzs Pouring a Little Psychological Cold Water on Online Dispute Resolution, an article also included in this issue.9 Nevertheless, ODR enjoys current parlance, so we will aim to recognize its variation in characteristics and specific functions where possible. This Essay opens with a description of the panel presentations on ODR in practice.10 Section III describes an analytic framework for dispute system design (wDSDx) comprised of six elements: goals, stakeholders, context and culture, process, resources, and evaluation, then compares sample ODR processes (public and private) with reference to the framework. Section IV concludes with comments on ODR experience and future prospects. II. ODR PANEL REVIEW The American Association of Law Schools 2019 annual meeting included a panel titled wPromises and Pitfalls of Technology in Dispute Resolution.x11 Below is a brief summary of the ODR examples highlighted by other panelists, both during the annual meeting and again in subsequent publications. In sequence, the cases move from the more general use of technology, to the specific use of ODR in courts, to the use of ODR in smart contracts on the blockchain. Carrell and Ebnerzs article, Mind the Gap,12 aims to close wthe technological gap by incorporating helpful technologies into mediation practice and process .. [so] the field can realign with the changing characteristics of mediators and parties, and thrive.x13 Traditional mediation has evolved in practice to include facilitative, evaluative, transformative, and narrative mediation, as well as various hybrid models, all in an in–person 6. See Loomis v. Wisconsin, 881 N.W.2d 749 (Wis. 2016), cert. denied, 137 S. Ct. 2290 (2017); see also Jeff Larson et al., How We Analyzed the COMPAS Recidivism Algorithm,PROPUBLICA (May 23, 2016), www.propublica.org/article/how-we-analyzed-the-compas-recidivism-algorithm. 7. Orna Rabinovich–Einy & Ethan Katsh, Blockchain and the Inevitability of Disputes: The Role for Online Dispute Resolution, 2019 J. DISP. RESOL. 47 (2019); Amy J. Schmitz & Colin Rule, Online Dispute Resolution for Smart Contracts, 2019 J. DISP. RESOL. 103 (2019); Ayelet Sela, E–Nudging Justice: The Role of Digital Choice Architecture in Online Courts, 2019 J. DISP. RESOL. 127 (2019). 8. David Allen Larson, Designing and Implementing a State Court ODR System: From Disappointment to Celebration, 2019 J. DISP. RESOL. 77 (2019). 9. See Jean Sternlight, Pouring a Little Psychological Cold Water on Online Dispute Resolution, 2020 J. DISP. RESOL. 1 (2020). 10. Rabinovich–Einy & Katsh, supra note 7; Schmitz & Rule, supra note 7; Sela, supra note 7. See also Alyson Carrell & Noam Ebner, Mind the Gap: Bringing Technology to the Mediation Table, 2019 J. DISP. RESOL. 1 (2019); Larson, supra note 8. 11. 2019 Annual Meeting: Building Bridges, Program, AM. ASSzN OF LAW SCH. 71 (2019), https://a m.aals.org/wp-content/uploads/sites/4/2018/12/AM19_mainProgram.pdf. 12. See Carrell & Ebner, supra note 10. 13. Id. at 1. https://scholarship.law.missouri.edu/jdr/vol2020/iss1/10 2 Martinez: Designing Online Dispute Resolution No. 1] Designing Online Dispute Resolution 137 environment.14 In parallel, the world has shifted in its relationship to technology, including a change in how we use technology to engage in conflict and resolve it. My co–panelists, the authors, collectively traced the trajectory of technology and its implications on mediation, mediators, and mediated parties. Of particular importance is how technology changes wthe ways in which we communicate, share, access, and analyze information.x15 The authors suggest, each in their own way, that by remaining only offline, dispute resolution professionals invite risks to clients, mediators, courts, and commerce. Shifting to an online platform entails different roles for technologyvor what is sometimes referred to as the wfourth partyx16vin administrative (case management), communicative (email, scheduling, education, outreach, discovery rooms, etc.), substantive (legal predictive analytics), and practical (aiding lawyers, parties, and mediators at the table) contexts. Ayelet Selazs article, e–Nudging Justice, probes the use of online courts and tribunals as a means to improve the justice systemzs efficiency, access to justice, and quality of decision–making.17 An online court is a digital environment. A partyzs interface with that online court environment influences that partyzs behaviors and choices. Thus, ODR constitutes a digital choice–architecture that
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